A blog devoted to the actors and public policy issues involved in the 1998 District of Columbia Court of Appeals decision in Freedman v. D.C. Department of Human Rights, an employment discrimination case.

Tuesday, April 26, 2011

Superior Court Decision -- Freedman v. D.C. Dept. Human Rights (1996)

SUPERIOR COURT

OF THE DISTRICT OF COLUMBIA

Civil Division

__________________

GARY FREEDMAN,

Plaintiff

v.

DISTRICT OF COLUMBIA DEPARTMENT
OF HUMAN RIGHTS,

Defendant
__________________

MPA No. 95-14
Judge XXXXXXX
Calendar 14

ORDER

Before the Court is petitioner’s Petition for Review from the District of Columbia Department of Human Rights (“DHR”), respondent District of Columbia Department of Human Rights’ Opposition and petitioner’s Reply Memorandum. Petitioner has challenged the DHR’s Determination on Reconsideration in the matter of Freedman v. Akin, Gump, Hauer & Feld (92-087-P (CN), which affirmed the Department’s finding of no probable cause as to petitioner’s claim that he had been discriminated against because of his sexual orientation by his former employer, the law firm of Akin, Gump. Having reviewed the pleadings and the record herein, this Court concludes that there is no basis for overturning DHR’s decision, and therefore, DHR’s determination of no probable cause is affirmed.

While the precise standard for reviewing a determination of no probable cause has yet to be definitively established by the Court of Appeals, see Simpson v. District of Columbia Office of

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Human Rights, 597 A.2d 392, 406 (D.C. 1991, 1/ this Court will adopt the standard advocated by appellant in Simpson: was the determination “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law”? Id. In reviewing the agency’s decision, the Court is cognizant that an “agency’s decision . . . is presumed to be correct, so that the burden of demonstrating error is on the appellant or petitioner who challenges the decision.” Cohen v. Rental Housing Comm’n., 496 A.2d 603, 605 (D.C. 1985). See also Motor Vehicle Mfr’s. Ass’n. of U.S., Inc. v. State Farm Mut. Auto Ins. Co., 463 U.S. 29, 43 (1983) (under the arbitrary and capricious standard, a court may not substitute its judgment for that of the agency); Steel Manufacturers Ass’n. v. Environmental Protection Agency, 27 F.3d 642, 646, 307 U.S. App. D.C. 192, 196 (1994) (in assessing whether agency decisions are arbitrary and capricious, a court must afford an agency “significant leeway” and may not substitute its judgment for that of the agency but shall require “only that the agency’s decisions reflect reasoned decision making”).

In this case DHR issued a detailed ten-page decision
____________________

1/ The Court of Appeals in Simpson did not settle on the precise wording that describes the standard to be used in the review of agency findings of no probable cause. In that case, the District argued that the standard was “arbitrary, capricious, or an abuse of discretion.” See Simpson, 597 A.2d at 406. Simpson contended that the standard was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” The Court of Appeals noted that Simpson’s articulation seemed reasonable but declined to definitively adopt it, finding that the issue was not material to the resolution of that case.

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justifying its no probable cause finding. In its decision, DHR found that although petitioner had made out a prima facie case of discrimination under the analytic framework set forth inMcDonnell-Douglas Corp. Green, 411 U.S. 792 (1973) and its progeny, respondent’s proffered reasons for terminating the petitioner were not pretextual, but were legitimate and nondiscriminatory given the valid concerns regarding petitioner’s mental health and stability based on petitioner’s own statements, the reactions of his co-workers to petitioners’ behavior, and the advice of mental health professionals. On the basis of these detailed findings of fact, DHR concluded that there was “no credible evidence in the record that respondent terminated [petitioner] because of his sexual orientation or that [petitioner] was harassed because of his sexual orientation.” Petitioner then moved for Reconsideration of the DHR’s Determination on July 27, 1993, and on September 24, 1993, DHR reaffirmed its determination of no probable cause.

Despite the exhaustive efforts by petitioner to support these arguments, the Court must conclude that the record is devoid of any basis for concluding that DHR’s decision was arbitrary, capricious, an abuse of discretion, or not in accordance with the law. With respect to petitioner's arguments regarding DHR’s findings as to his mental condition, petitioner has apparently misunderstood DHR’s decision. Contrary to the petitioner’s argument, DHR did not find that petitioner suffered from a mental illness. Rather, DHR concluded that the law firm was not motivated by a discriminatory animus based on petitioner’s sexual orientation, but rather by a concern for his mental stability, and this constituted a legitimate business reason for his termination. As to petitioner’s argument that DHR failed to consider evidence regarding possible fabrication, harassment and/or retaliation, the Court has reviewed the record herein and finds that DHR considered the arguments now raised by petitioner and properly rejected them. It is not the role of this Court to weight the evidence and substitute its judgment for that of the agency. Moreover, neither DHR nor this Court need "determine whether or not defendant adequately investigated the charges of . . . discrimination before discharging plaintiff.”Evans v. Bally’s Health and Tennis, 64 FEP Case. 33, 38 (D.Md. 1994). See also Bradshaw v. Brookdale Hosp. Medical Ctr., 1993 Westlaw 289435 (E.D.N.Y. 1993) (even if defendant’s investigation resulted in an inaccurate determination, plaintiff offers no

11 comments:

The Court states: "DHR did not find that petitioner suffered from a mental illness."

Absolutely true. The DHR found (finding of fact 6) that Akin Gump's allegation that it spoke to a psychiatrist who stated I appeared to suffer from a mental illness was genuine and credible. Big difference!!

"6. Respondent also sought outside professional guidance because of the emotional and psychological nature of Complainant’s allegations and his coworkers responses. Respondent contacted an unnamed counselor from its Employee Assistance Program and an outside psychiatrist. Dr. Gertrude Ticho identified Complainant’s behavior, putting a negative meaning to virtually every event as “ideas of reference” and cautioned that individuals in similar circumstances may become violent. After Respondent’s investigators consulted with Complainant’s supervisor and Respondent’s Management team, Respondent terminated Complainant’s employment."

"The plaintiff retains the burden of persuasion. She now must have the opportunity to demonstrate that the proffered reason was not the true reason for the employment decision. This burden now merges with the ultimate burden of persuading the court that she has been the victim of intentional discrimination. She may succeed in this either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered explanation is unworthy of credence. See McDonnell Douglas, 411 U.S. at 411 U. S. 804-805. Texas Dept. of Commun. Affairs v. Burdine, 450 U.S. 248 (1981)."

Notice that I proved my case both directly (Akin Gump discriminated because (a.) it lied when it said the firm did not know about my sexual orientation and (b.) it lied when it said I never complained about harassment based on sexual orientation) AND indirectly by showing that Akin Gump's proferred reasons for the termination were not worthy of credence under Burdine. To cite one example, the firm produced evidence supporting its contention I suffered from severe mental illness that rendered me potentially violent before I was hired as a full-time employee and throughout my tenure, yet produced no documentation of bad conduct dated prior to my complaint of harassment.

The Court states: "As to petitioner’s argument that DHR failed to consider evidence regarding possible fabrication, harassment and/or retaliation, the Court has reviewed the record herein and finds that DHR considered the arguments now raised by petitioner and properly rejected them. It is not the role of this Court to weight the evidence and substitute its judgment for that of the agency. Moreover, neither DHR nor this Court need 'determine whether or not defendant adequately investigated the charges of . . . discrimination’ before discharging plaintiff.' Evans v. Bally’s Health and Tennis, 64 FEP Case. 33, 38 (D.Md. 1994). See also Bradshaw v. Brookdale Hosp. Medical Ctr., 1993 Westlaw 289435 (E.D.N.Y. 1993) (even if defendant’s investigation resulted in an inaccurate determination, plaintiff offers no evidence that defendant acted with discriminatory intent). Consistent with the holdings of these cases, the Court concludes that any allegations regarding the adequacy of the firm’s investigation cannot negate the credibility of the respondent’s asserted reasons for the termination."

I have not read either of the opinions cited by the Court in the above quote. However, a citation in the ABA publication Current Developments in Suits by Accused Harassers: The Plaintiff’s Perspective by Loretta T. Attardo, Esq. seems to indicate that one of the cases (Evans v. Bally's) isn't even on point. Evans v. Bally's seems to concern a lawsuit for wrongful discharge by an accused harasser. The case does not even appear to be a title VII action. Freedman involves a complaint filed by an alleged victim of job harassment arising under a state anti-discrimination statute modeled on Title VII.

The ABA article states: "See also, Evans v. Bally’s Health and Tennis Club, 64 FEP cases (BNA) 33, 40 (D. Md. 1994) (holding that the “mere fact that the plaintiff may have been unfairly accused of sexual harassment does not constitute a basis for a claim of wrongful discharge.”)."

Why would the Court have relied on a case of dubious authority to support a fundamental point of law that would be better supported by a case involving a victim of job harassment suing under Title VII? It's a tad askew.